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Why There is No Duty to Pay Damages: Powers, Duties, and Private Law

This essay was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting the private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that the a careful analysis of the doctrines surrounding pleading, payment of damages, accord and satisfaction, and judgments reveals that our law gives plaintiffs the power to extract wealth from defendants but does not impose duties of defendants to compensate those that they have wronged. The structure of my argument is borrowed from a much older exchange between Oliver Wendell Holmes, Jr., who thought that contract law imposed a duty to perform or pay damages and Frederick Pollock, who denied that that the payment of damages was part of the duty to keep a contract. I side with Pollock against Holmes, and think that the Englishman’s argument provides a useful model in the debate between corrective justice and civil recourse.